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Form I-9 Flexibilities Allowing Remote Review of Employment Documents Extended Through July 2023

By: Annie Grove, Associate

The U.S. Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE) announced on October 11, 2022, that their guidance on Form I-9 flexibilities will be extended until July 31, 2023.

The Form I-9 flexibilities – initially announced in March 2020 at the start of the COVID-19 pandemic –suspended the mandatory “in-person” review of documents when employees are hired. Instead, employers are permitted to examine documents remotely. Generally, employers must complete the in-person review of I-9 documentation by the third day of employment.

Subsequent guidance from DHS and ICE in March 2021 clarified that the physical, in-person inspection of Form I-9 documentation applied only to employees physically reporting to work at a company location on a regular basis.

Currently, the Form I-9 flexibilities only apply to employees hired on or after April 1, 2021, and who work entirely in a remote setting due to COVID-19 precautions. Of course, employers can complete the in-person documentation review for employees hired on or after March 20, 2020 and who presented documents remotely.

The COVID-19 pandemic brought to question the physical inspection requirement as it was completed virtually online (on a temporary basis) via video call or through an authorized representative on behalf of the employer. Under the Form I-9 flexibilities, a family member, friend, or neighbor could act as the employer’s authorized representative during the remote verification process. In this case, the employer would be present during the verification with the authorized representative and employee via video call.

DHS and ICE’s extension of the I-9 flexibilities may signal that remote verification may become a permanent option in the future, especially given the transition and demand for remote work. However, employers should be aware that they remain liable for violations stemming from improperly completed Form I-9s, especially when using an authorized representative as described above. Employers must also properly complete the in-person verification within three days of an employee’s return to work or the termination of the I-9 flexibilities, whichever is sooner.

As a reminder, new employees must complete, sign, and date Section 1 of the I-9s on or before the first day of employment. Employees have three days in which to present verification documents. Each I-9 violation is subject to penalties ranging between $252 and $2,507 for a first offense.

If you have questions regarding the I-9 flexibilities or the proper completion of Form I-9, please contact our office.